By George H. Friedman*

By now, football fans know that National Football League Commissioner Roger Goodell has ruled on “Deflategate,” upholding New England Patriots quarterback Tom Brady’s four-game suspension. So, what’s next? I offer below a short primer on what might happen next. Again, in the interest of full disclosure – another cornerstone of arbitration – I hereby state that, as a long suffering New York Jets fan – I despise Brady, Belichick, and the Patriots. On the other hand, I love arbitration, so I think I can remain objective.

The Basics of the NFL’s Appeals Process

I’ve previously blogged on the NFL’s appeals process. Cases like this are governed by Article 46 of the Collective Bargaining Agreement between the NFL and the players’ union, the NFL Players Association (“NFLPA”), which states in section 1(a):

All disputes involving a fine or suspension imposed upon a player for conduct on the playing field (other than as described in Subsection (b) below) or involving action taken against a player by the Commissioner for conduct detrimental to the integrity of, or public confidence in, the game of professional football, will be processed exclusively as follows: the Commissioner will promptly send written notice of his action to the player, with a copy to the NFLPA. Within three (3) business days following such written notification, the player affected thereby, or the NFLPA with the player’s approval, may appeal in writing to the Commissioner.

Section 2(a) provides:

For appeals under Section 1(a) above, the Commissioner shall, after consultation with the Executive Director of the NFLPA, appoint one or more designees to serve as hearing officers… Notwithstanding the foregoing, the Commissioner may serve as hearing officer in any appeal under Section 1(a) of this Article at his discretion.

Sitting as the “final arbiter” of disciplinary matters, the Commissioner upheld Brady’s four-game suspension.

Now What? Some Possibilities

Now the fun begins. Here are some possible if not likely outcomes:

NFL can seek to enforce the Commissioner’s decision: The Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1 et seq., provides that an arbitration decision – called an award – may be enforced in court. The term of art is “confirmation” of the award. The league has already started this process, filing a petition to confirm the award on Tuesday in U.S. District Court for the Southern District of New York.1

The NFLPA can challenge in court the award issued by the Commissioner: The FAA provides that an arbitration decision may be challenged under section 10(a)(2) for “evident partiality” of the arbitrator. I blogged in June that the NFLPA could challenge an adverse arbitration decision based on the propriety of the Commissioner or his designees being arbitrator. This happened July 29th, with the NFLPA filing in federal court in Minnesota a petition to vacate the Commissioner’s decision. How might this turn out?

Earlier this summer I posted NFL Commissioner Tackled as Arbitrator in Employment Dispute. There, I reported that the Supreme Court of Missouri had disqualified the NFL’s Commissioner as the sole arbitrator in a case involving a non-player employee of the St. Louis Rams. State ex rel. Hewitt v. Hon. Kerr, No. SC93846 (Mo., Apr. 28, 2015), involves multiple issues and shifting concurrences and dissents. But one thing clearly emerges from the court’s opinion: cutting through the clutter of a complex and somewhat convoluted procedural history, the Missouri Supreme Court came to the core issue of whether it was unconscionably unfair to compel a non-player St. Louis Rams employee to arbitrate before the Commissioner who, according to the NFL’s constitution and bylaws, was an employee of the team owners (including the Rams)?

The Court’s answer was “It’s not fair.” Said the opinion, “Based on the facts of the present case, the terms in the contract designating the commissioner, an employee of the team owners, as the sole arbitrator with unfettered discretion to establish the rules for arbitration are unconscionable and, therefore, unenforceable. The constitution and bylaws provide that the ‘League’ consists of the team owners. Under the constitution and bylaws, the league ‘shall select and employ’ the commissioner and set his or her term of employment and compensation. The constitution and bylaws also provide unequivocally that the commissioner is employed by the league; i.e., the team owners… In effect, then, the commissioner is required to arbitrate claims against his employers.”

Now, the Brady case of course involves a player, and as the court noted, players have a much greater bargaining position and are represented by a union, but still it raises an interesting question: should the Commissioner have bowed out and agreed to an independent arbitrator? And, indeed Brady’s team is already advocating this point. His agent, Don Yee said “The Commissioner’s decision is deeply disappointing, but not surprising because the appeal process was thoroughly lacking in procedural fairness… The appeal process was a sham, resulting in the Commissioner rubber-stamping his own decision.” The petition to vacate the award expresses similar sentiments.

Staying on the field via injunction: Is there any way for Brady to stay on the field? Perhaps. Assuming he challenges the Commissioner’s decision, it can take quite some time until the court rules on the union’s motion to vacate the award. In the meantime, the ruling upholding the suspension would remain in effect. Unless Brady obtains an injunction from the court.2 What does the injunction do? It basically would hit the “Pause” button on implementing the suspension until the court rules on whether the award is to be enforced.

But getting an injunction is not easy. Brady would have to prove the likelihood of irreparable injury if the suspension is carried out now. Turning 38 August 3rd, he can argue that there’s no getting back those four games. But he also needs to show that he is likely to succeed in his challenge to the Commissioner’s decision. That may present a major hurdle to clear. It is very difficult to overturn an arbitration award. It matters not whether the arbitration decision in question flows from a labor arbitration or a business arbitration. Who says? The Supreme Court of the United States.3 Here the NFL is asserting that two “grown-up” parties – the NFL and the players’ union – agreed that the Commissioner could serve as arbitrator of disciplinary matters. In other words, the league’s position is “You knew this going in, so you can’t complain now.” The union’s take is “Yes, but not in a case like this.” On balance an injunction for Brady is in my view a long shot.

A Win May Not Be a Win

Even if Brady prevails, he may not win. How’s that? Readers should bear in mind that, if he gets the injunction, this just stops the league from imposing the suspension until the court rules on the challenge to the award. At best this alone just buys time. Next, suppose Brady prevails in getting the court to vacate the Commissioner’s ruling because Goodell could not possibly have been an impartial arbitrator? This does not mean that the court effectively says “Tom, your evidence was more persuasive. You win. No suspension.” Far from it. Instead, the court would rule that the Commissioner’s decision is stricken, and Brady’s appeal has to be reheard before a neutral arbitrator. He would then need to present his case to a new arbitrator and would, for example, be at risk of having to explain why he destroyed his cell phone.

A Daunting Task
Summing up, Brady faces an uphill battle. But you never know….in football sometimes a “Hail Mary” pass4 works.

1The suit is also grounded in section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, which governs suits against unions.

2But which court? Right now the NFL’s petition to enforce the decision is pending in federal court in New York City. The NFLPA’s action to vacate the Commissioner’s decision is pending in federal court in Minnesota. My guess is both cases will eventually be consolidated, most likely in New York. Although the NFL does business in Minnesota, the award was issued by the Manhattan-based Commissioner. The Federal Arbitration Act in section 9 (award enforcement) and section 10 (award challenges) vests authority in the federal court “in and for the district wherein the award was made.”

3See Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960) (labor case): “The refusal of courts to review the merits of an arbitration award is the proper approach to arbitration under collective bargaining agreements. The federal policy of settling labor disputes by arbitration would be undermined if courts had the final say on the merits of the awards.” Also Hall Street Associates, LLC v. Mattel, Inc., 552 U.S. 576 (2008),) (business arbitration).

4For those readers who are not football fans, this is a long pass attempted in desperation the waning seconds of a game by the team that’s losing. Basically the receivers flood the end zone and the quarterback hurls the ball in their general direction. The term “Hail Mary” was according to NFL legend coined by Dallas Cowboys quarterback Roger Staubach in 1975.

*George H. Friedman, an ADR consultant and Chairman of the Board of Directors of Arbitration Resolution Services, Inc., retired in 2013 as FINRA’s Executive Vice President and Director of Arbitration, a position he held from 1998. In his extensive career, he previously held a variety of positions of responsibility at the American Arbitration Association, most recently as Senior Vice President from 1994 to 1998. He is an Adjunct Professor of Law at Fordham Law School. Mr. Friedman serves on the Board of Editors of the Securities Arbitration Commentator. He is also a member of the AAA’s nation roster of arbitrators. He holds a B.A. from Queens College, a J.D. from Rutgers Law School, and is a Certified Regulatory and Compliance Professional (Wharton-FINRA Institute).

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